THE RIGHT OF WOMEN IN HAITI TO BE FREE FROM VIOLENCE AND DISCRIMINATION

III. THE DUTY OF THE STATE TO ACT WITH THE DUE
DILIGENCE NECESSARY TO PREVENT AND ERADICATE VIOLENCE AND
DISCRIMINATION AGAINST WOMEN

A.International
and Regional Standards Applicable to Violence and Discrimination
against Women

80.The right
of women to live free from discrimination and violence has been
reaffirmed in the regional and international human rights protection
systems. International jurisprudence has established the duty of the
State to act with due diligence to protect human rights, including
those of women. This obligation entails four components: prevention,
investigation, sanction and reparation of human rights violations.[104]

81.The
obligations of OAS Member States regarding human rights are derived
from the OAS Charter and the American Declaration of the Rights and
Duties of Man, as well as the regional human rights treaties that they
have ratified. In the Americas, the principles of equality and
non-discrimination are the core of the Inter-American human rights
system and of binding instruments applicable to Haiti’s situation,
such as the American Convention and the Convention of Belém do Pará.
This factor, as well as the priority granted by the Commission and its
Rapporteurship to protecting the rights of women, also reflects the
importance given to this area by the Member States themselves.

82.Haiti is
a State Party to the American Convention since September 27, 1977.
Article 1 of the American Convention provides that States Parties are
obligated to respect and guarantee all rights and freedoms recognized
therein, without discrimination based on sex, among other conditions.
Additionally and in accordance with the principle of
non-discrimination, Article 24 recognizes the right to equal
protection under the law, and Article 17 establishes that the State
must guarantee an equal recognition of the rights and “an adequate
balance of responsibilities” for spouses within marriage. By
recognizing the fundamental rights of all persons, without
distinction, this Convention protects basic rights such as the right
to life, liberty and personal integrity (Articles 4, 5 and 7,
respectively). Trafficking of women is expressly prohibited under
Article 6 and children’s rights are subject to special protection
measures under Article 19.

83.The main
objectives of the regional human rights system and the efficacy
principle require that these guarantees become a reality and are
implemented. Consequently, when the enjoyment of any of these rights
is not guaranteed de jure and de facto under their
sphere of jurisdiction, the States Parties, pursuant to Article 2 of
the American Convention, are committed to adopting legislative and
other measures as needed to put them into practice. In addition, the
American Convention requires the domestic system to provide a judicial
recourse that is effective and accessible to persons alleging
violations of their rights protected under national law or under the
Convention. When these remedies are not accessible or effective, the
Inter-American system provides a complementary avenue through the
individual petitions system.

84.The
Convention of Belém do Pará, ratified by the Haitian State on June
2,1997[105],
and the most ratified instrument of the Inter-American system, is
particularly relevant to the analysis presented in this report. The
adoption of this Convention reflects a uniform concern throughout the
Hemisphere about the discrimination women have historically suffered
in American societies, its relationship to the problem of violence
against women, and the need to adopt comprehensive strategies to
prevent, punish, and eradicate these two alarming and prevalent
problems. Among the most important principles enshrined in this
Convention are the following:

- It
expressly recognizes the relationship between discrimination and
violence against women, indicating that such violence is a reflection
of the historically unequal power relations between women and men, and
that a woman’s right to be free from violence includes the right to be
free from all forms of discrimination and to be valued and educated
free of stereotyped patterns of behavior;[106]

- It
defines violence against women as “any act or conduct, based on
gender, which causes death or physical, sexual or psychological harm
or suffering to women, whether in the public or the private sphere”;[107]

- It
establishes that violence affects women in multiple ways, impairing
their exercise of other fundamental rights of a civil and political
nature, as well as economic, social and cultural rights;[108]

- It
provides that States Parties must act with due diligence to prevent,
investigate prosecute and punish violence against women occurring in
the public and private domains, within the home or in the community,
perpetrated by individuals or State agents;[109]
and

- It
provides that States must take special account of the situation of
vulnerability to violence that certain groups of women can face by
reason of their race or ethnic background; their status as migrants,
refugees, or displaced persons; for being pregnant or disabled; for
facing unfavorable economic conditions; affected by an armed conflict;
deprived of their liberty; or for being girls.[110]

85.In
general, the inter-American system recognizes that violence against
women and its root (discrimination) are serious human rights problems
with negative consequences for women and their surrounding community,
which directly hinder the recognition and enjoyment of all their human
rights, including the respect of their lives and their physical,
mental and moral integrity.

86.According
to this precedent, the responsibility of the State to act with due
diligence to prevent the infringement of women’s human rights in times
of peace and conflict has a comprehensive nature.[111]
The State is directly responsible for acts of discrimination and
violence perpetrated by its own agents, as well as those perpetrated
by non-State actors and private parties, under its tolerance or
acquiescence.[112]
Furthermore, the State’s obligation is not limited to eradicating and
punishing acts of discrimination and violence; it also includes the
duty of prevention.[113]

87.In that
framework of international responsibility, the duties of the State
under the instruments of the Inter-American human rights system have
special connotations in the case of girls. Article 19 of the American
Convention guarantees children the right to protection measures that
their condition as minors demands from their family, society and the
State.[114]
The Inter-American Court has established that the UN Convention on the
Rights of the Child is part of a comprehensive international corpus
juris
for the protection of children that helps to “establish the content
and scope of the general provision established in Article 19 of the
American Convention.”[115]
The UN Convention on the Rights of the Child, ratified by Haiti on
December 29, 1994, contains legal provisions specifically aiming to
protect children from arbitrary and illegal interference in their
private life and from physical, mental or sexual abuse.[116]

88.The
Inter-American Court has stated that children “have the same rights as
all human beings (…), and also special rights derived from their
condition, and these are accompanied by specific duties of the family,
society, and the State”.[117]
Therefore, the State has to adopt special measures geared towards
protecting children, with greater care and responsibility in
accordance with the Best Interest of the Child principle.[118]
This duty is reinforced by the special vulnerability and exposure girl
children face to acts of violence against women, which is recognized
by the Convention of Belém do Pará.

89.In this
context, the UN World Report on Violence Against Children states that
in order to effectively respond to violence against children, it is
necessary for the State to adopt a range of coordinated approaches
that integrate legal, social, educational and economic strategies to
reduce risk factors and strengthen protection at the levels of the
individual, the family, the community and society.[119]
More specifically, this report urges States and civil society to
strive to transform attitudes that normalize violence against
children, including stereotypical gender roles and discrimination.
Furthermore, it establishes that States should invest in systemic
education and training programs both for professionals and
non-professionals who work with or for children and families to
prevent, detect, and respond to violence against children.[120]

90.As
mentioned above, the Convention of Belém do Pará (Article 9)
establishes that the State, on acting with due diligence in the face
of violent acts, should be especially mindful of the particular
exposure to violence and discriminatory acts that a woman may suffer
because of her young age (under 18 years old), among other conditions
of risk. The IACHR has established that this provision reflects that
discrimination in its different expressions does not always affect all
women equally:
some women are more exposed than others to acts of violence and
discrimination.[121]
Therefore, in the case of girls, the State has a reinforced duty to
protect their human rights, on the basis of two factors, their minor
age and their sex, and the obligation to adopt special measures of
care, prevention and guarantee.

91.Also
relevant for the present analysis are the international obligations
adopted by the Haitian State promoting equality and
non-discrimination, such as Articles 1 and 2 of the Universal
Declaration of Human Rights, Articles 2 and 3 of the International
Covenant on Civil and Political Rights and the International Covenant
on Economic, Social and Cultural Rights. Haiti is also a State Party
to CEDAW, ratified by Haiti, on July 8, 1995, which provides that the
State and its agents are obligated to act with due diligence to
eliminate socio-cultural patterns and stereotypes that promote
discrimination against women, in all its forms. CEDAW defines
discrimination against women broadly in its Article 1 as:

any distinction,
exclusion or restriction made on the basis of sex which has the effect
or purpose of impairing or nullifying the recognition, enjoyment or
exercise by women, irrespective of their marital status, on a basis of
equality of men and women, of human rights and fundamental freedoms in
the political, economic, social, cultural, civil or any other field.

92.This
definition includes all differences in treatment based on sex that
intentionally or in practice place women in a disadvantaged position
and prevent the full recognition of their human rights in the public
and private spheres. The Committee overseeing compliance with CEDAW
has also established that the definition of discrimination in the
Convention includes violence against women in all its forms, whether
direct or indirect.[122]

93.Regarding
international instruments pertaining to violence against women, it is
important to mention as complementary to CEDAW, the Declaration on the
Elimination of Violence against Women approved in Vienna in 1993,
which defines violence against women as a phenomenon including: forced
prostitution,
physical, sexual and psychological violence.[123]

B. Measures Adopted by Haiti to Address Violence and
Discrimination against Women

94.The
Commission recognizes the important efforts of the government, in
particular of the Ministry of Women, to make violence and
discrimination against women priority issues to be addressed
systematically and institutionally, in close collaboration with civil
society organizations.[124]
Most notably, the Commission commends the establishment of the inter-sectoral
network Table de Concertation Nationale,
and notes its achievements and the critical role it plays in the
advancement of protections for women victims of violence, through a
variety of measures. The Table de Concertation Nationale,
mandated to support victims of sexual violence, is composed of
representatives from the Ministries of Women, Justice and Health, and
several civil society organizations.[125]
Among its main activities are the provision of services to victims of
violence, the collection and systematization of the statistics
available on different forms of violence in the country and the
implementation of prevention and sensitization programs oriented
towards the general population. The types of services available
include:

-Shelters
where women can stay temporarily in cases of physical, sexual or
intra-family abuse;[126]

-Legal
assistance
for victims (filing complaints with authorities). Also, the services
high in demand, and similarly provided, may include assistance in
divorce or child custody proceedings, and intra-family violence
matters;

-Medical
treatment
for victims of rape or sexual assault/abuse;

-Psychosocial
counseling
for victims of rape and sexual assault/abuse; and

-Training
and Promotion
designed to inform women of their rights, to provide women with
information about available social services, including legal services,
and to educate women on public health, including prevention and
protection from the transmission of sexually transmitted infections.

95.In the
realm of services, the Ministry of Women has also created a crisis
response service through a special reception and referral unit, with
staff that is trained to advise female victims who request aid
throughout the 10 administrative departments of the country.
Similarly, during 2007, the Office of the Public Prosecutor at the
Court of First Instance in Port-au-Prince took measures to respond
more promptly and effectively to complaints by starting a 24-hour
telephone hotline to report a crime and having a public prosecutor on
call 24/7 to respond to such complaints.[127]
The Public Prosecutor further indicated that a
specialized investigation unit had been created within his office to
address matters relating specifically to violence against women, as a
result of a joint effort between his office and the Ministry of Women.
Other governmental entities, such as the Ministry of Social Affairs
and the Ministry of Justice, both have offices working with women and
disadvantaged persons, respectively. However, according to the
government, these are not very effective, due to the lack of
resources. In Haiti, civil society is largely responsible for
providing assistance to victims through the implementation of a formal
program to achieve this end.[128]

96.Among
other institutional measures and services recently undertaken, the HNP
created a specialized unit on children or “brigade des mineurs”
in 2006, appointed to provide specialized treatment for children in
conflict with the law and/or abandoned or abused children, including
girls who may have been sexually abused. Additionally, the Office
du Protecteur du Citoyen (OPC), an independent State entity with a
mandate to receive and process complaints from the public on acts of
misconduct or abuse by State agents, including human rights
complaints, recently created an investigation and research unit on the
situation of women and children. Since these initiatives were recently
adopted, the lack of sufficient resources was noted as a common hurdle
in the fulfillment of their mandates.

97.In regards
to training and capacity-building efforts, the Ministry of Women has
also established the “Gender Analysis Promotion Department” which is
responsible for providing training to all government employees on
gender issues and ensuring that government institutions tackle
discrimination against women in their areas of work.[129]
In this context, the Ministry has organized various training sessions
with ministries and government institutions to achieve the goal of
including a gender mainstreaming analysis into public policies. Also,
the Ministry of Women, in coordination with civil society and
international agencies (URAMEL, MINUSTAH and UNFPA), has taken
initiatives to include information on the treatment of women and
violence against women in the training curriculum of police forces and
personnel within the justice system.[130]

98.The
Commission further recognizes the efforts of the Ministry of Women to
promote the protection of the rights of women through legislative and
public policy means. On this point, the Commission notes the adoption
and entry into force of the July 2005 decree modifying existing
provisions on sexual violence in the criminal code of Haiti, which
resulted in a greater punishment for cases of rape.[131]
Regarding this decree, the State informed the Commission that the
minimum sentence for cases of rape is 10 years and it increases
according to the circumstances and the gravity of the crime.[132]
In the case of girls, the minimum sentence is 15 years.[133]
Specifically, the law previously provided for a penalty of
‘reclusion’.[134]
The decree of 2005, in turn, provides for a punishment of up to ten
years of forced labor.[135]
In this connection, it is important that legislative reform designed
to prevent gender-based violence adequately responds to the situation
of women through a multidisciplinary approach, incorporating all forms
and contexts in which violence against women occurs (including
domestic, sexual, and criminal violence). On this point, the
Commission is encouraged by other measures adopted by the Ministry of
Women, which include the proposed drafting of new legislation
addressing violence against women and its inter-ministerial efforts to
provide a comprehensive response to the problem of gender-based
violence.

99.In
September 2006, the Ministry of Women furthermore submitted three
draft laws to Parliament on the following issues:
paternity (in order to render responsibility of fathers for their
children more effective), cohabitation (guaranteeing common law unions
legal rights equal to those of married couples), and on paid domestic
workers.[136]
Further, the Government has indicated its intention to propose bills
on violence against women and on gender equality.[137]
Finally, the Government plans to introduce new amendments to existing
legislation to extend protection for women. As such, the Ministry’s
proposed amendments have been presented for public debate and have
been submitted to a committee of jurists in order to be presented to
Parliament.[138]These draft laws
are part of a greater action plan by the Ministry of Women, which
includes the promotion of women’s rights, increasing public awareness
on the problem of violence against women, the analysis of the
disparities between men and women in various sectors, and the
reduction of poverty.[139]

100.In the
sphere of public policy, the Ministry of Women has designed a national
plan of action and is in the process of developing a national policy
on the promotion of gender equality and non-discrimination that aims
to integrate principles and practices of non-discrimination across all
public sectors. For example, in the area of education, some of the
measures planned by the Ministry of Women are the revision of school
curricula for the elimination of sexism and the promotion of higher
education for women. In the justice sector, the Ministry of Women has
planned to adopt, among others, the following measures: the
harmonization of domestic legislation with international conventions
on human rights and women’s rights; the implementation of a system to
supervise and monitor compliance and respect of women’s rights by
government institutions; the revision of the criminal, civil, labor
and commercial codes; the creation of a program for legal assistance
to victims of violence; and the promotion of women in the judicial
system.

101.
Specifically with regard to violence against women, the Minister of
Women highlighted her concern over the State’s incapacity to provide
legal aid for indigent women and a shelter for abused women. The
Commission therefore emphasizes the need for the national government
to allocate adequate resources to the Ministry of Women for its
initiatives and projects to be duly and effectively implemented in the
future.

102.On the
issue of prevention, the Commission notes the recent appointment of a
Director for Women’s Affairs at the Haitian National Police, a newly
created position within the national police to address a range of
matters, including to advise the Director General’s Office on issues
such as sexual harassment and violence against women by members of the
force, and to develop policies and procedures to promote gender
equality, and a mechanism to monitor and punish acts of sexual
harassment and violence against women. In this trend, the Commission
commends the implementation of a pilot project to provide special
treatment for female victims at two police stations. However, the
Commission met with the Women’s Affairs Unit of the HNP and its
representatives who confirmed a variety of challenges that hinder the
extent to which they can carry out their mandate, such as the lack of
special funds for the Unit and the absence of police presence in rural
areas. Thus, the Commission highlights the need to assign sufficient
financial and human resources in order to implement these initiatives
in the long-term.

103.In its
observations to this report, the State of Haiti highlights a number of
recent measures it has adopted to address the problems of violence
against women and discrimination, in the form of legislation, public
policies and programs.[140]
The government highlights its National Plan on Violence against
Women, which was adopted by the Ministries of Women and Health on
November 25, 2005. Both the Table de Concertation Nationale
and the Ministry of Women heavily advocated for this plan to be the
base of all state interventions related to violence against women and
now it is in the process of being implemented. The State also informs
that on April of 2008, the Ministry of Women has produced a document
entitled: “Framework for a Gender Equality Policy”, advocating the
need to address women’s priority issues in all state actions. The
Ministry of Women as well is working towards on a new national plan of
action focused on gender equality for 2009.

104.On March
of 2008, the State also informs that a two-party protocol was signed
between the Ministry of Women and the Ministry of Justice to
mainstream gender issues in the work of the HNP, especially in matters
related to the treatment afforded to female victims of violence in
police stations.
[141] On 2008, the
shelter Yvonne HakimRimpel V-Day was created to offer
services to victims of violence against women, including the
establishment of a telephone hotline to report these crimes. The
State also developed a training curriculum for police officers
regarding the problem of violence against women and the role of the
police, which will be validated in January of 2009.

105.The State
confirms that most of the public measures undertaken at the moment
center around data-collection, prevention and a multi-disciplinary
approach to the problem of violence against women.
[142] The government
also highlights the development of a special form to register cases of
violence against women to illustrate current tendencies. The last
state compilation of cases between 2002 to August 2008 reveals that
the number of incidents of violence against women reported has
increased, due to more accessible range of services and
awareness-raising campaigns. More victims of rape report cases at
health centers, the number of gang rapes has decreased, domestic
violence remains the same, and sexual crimes against girls seem to be
increasing. More women are presenting complaints of rape due to the
support of women’s rights organizations.

106.In regards
to CEDAW and the Convention of Belém do Pará, the State informed that
since 2005, a national expert from Haiti participates in the follow-up
mechanism to the Convention of Belém do Pará at the OAS level.
[143]
Furthermore, Haiti reported before the Committee on the Elimination
of Discrimination against Women on January 27, 2009 for the period of
1981-2006.

C. Access to Justice for Victims: Deficiencies in the
Investigation, Prosecution and Punishment of Acts of Violence against
Women

107.While the
Commission recognizes the efforts of the State, particularly of the
Ministry of Women, to adopt a legal, political and institutional
framework and State programs to address the problem of discrimination
and gender-based violence, certain remedies continue to exist mainly
on paper and not in practice. Pursuant to the Convention of Belém do
Pará, Haiti has the obligation to pursue, by all appropriate means and
without delay, actions to prevent, punish and eradicate violence
against women, and in particular, to apply due diligence to prevent,
investigate and impose penalties for acts of violence against women.
However, most cases of discrimination and violence against women are
never formally investigated, prosecuted and punished by the justice
system in Haiti. The Commission observes an alarming pattern of
systematic impunity that sends a social message that discrimination
and violence against women will be tolerated.

108.The
Commission is particularly troubled by the fact that female victims of
discrimination and violence are disinclined to turn to the justice
system. Victims and their families are often mistreated when
attempting to avail themselves of judicial remedies, and have no
confidence in the ability of the justice system to right the wrongs
committed. This combination of factors leaves the victims with a
sense of insecurity, defenselessness and mistrust in the
administration of justice.

109.The
Commission highlights that the deficiencies in the administration of
justice identified in previous reports of the IACHR on Haiti and on
women[144]
deeply affect the capacity of the State to prevent, investigate,
prosecute and punish discrimination and violence against women. Some
of the failures of the administration of justice sector that
negatively impact the State’s due diligence obligation noted by the
delegation during its visits were the lack of basic economic and human
resources for the police and judges to address these cases; the
absence of justice institutions in rural and marginalized areas; the
lack of legal assistance for victims; the need for training on human
rights issues; and the need for the strengthening of specialized units
within the police and the judiciary. The delegation also received
consistent reports of corruption inside the police force and the lack
of independence and impartiality of the judiciary.

110.During the
visits of the Commission, a variety of State and non-state sources
confirmed that most cases of violence against women are still not duly
investigated and punished.

111.The
Commission recognizes the efforts of the judicial system to prosecute
and punish perpetrators of rape against women since the July 2005
Decree. These have resulted in at least fifteen[145]
documented convictions for rape; the first of their kind in the
history of Haiti. According to the government, this decree is fueling
a change in the justice system’s perception of rape cases, promoting
convictions and harsher penalties for the perpetrators. [146]

112.However,
the Commission also notes that in comparison to the number of
registered cases of rape in recent years, cases of violence against
women are extremely slow in reaching the stage of prosecution and
punishment. During its visits, the Commission received information
about only five cases since 2005 that have received a court judgment,
all of which were brought with the support of civil society and
services organization SOFA.

113.SOFA
provided legal assistance in one criminal trial in 2005[147],
to four cases in 2006[148]
and is presently supporting two more cases scheduled for trial in
Jacmel (Southeast department).[149]
In one of the cases, a mother and daughter were raped and after
reporting the abuse, the daughter was killed. The mother continued to
receive threats by the aggressors after the death of her daughter. A
trial was held and the perpetrators were convicted – one to life in
prison and the other one to approximately twenty years in prison. In
two other cases, two minors were raped and the perpetrators were
sentenced to 9 and 10 years in prison.

114.The civil
society and services organization Kay Fanm shared with the delegation
a case that displays the kind of challenges women face to obtain an
adequate investigation, prosecution and punishment when they report
crimes of gender-based violence. The perpetrator in the case is James
Montas, a police officer, who orquestrated the collective kidnapping
and rape of Carline Sèide, a 20-year-old woman. Kay Fanm describes the
facts of the case as follows:

On November 2,
2003, at Delmas 19, the police officer James Montas (a.k.a Roudy)
attacked Carline Sèide, a 20 year-old-woman, when she was returning to
her home. He threatened her with his gun, brought her to his home,
tied her up to a bed and raped her. James Montas then called six (6 of
his accomplices) for them to rape her and then he raped her a second
time. Notwithstanding Carline’s desperate cries for help, no one came
to help her. After having committed the rape, James Montas threatened
her with death if she reported him and released her.[150]
[IACHR’s translation]

115.Kay Fanm
and the legal defense organization CARLI provided legal, medical and
shelter assistance to the victim throughout the judicial process.
Even though the perpetrator was sanctioned, Kay Fanm documented the
revictimization of the victim throughout the process. It mainly
criticized the actions of the defense lawyers, in statements
denigrating the victim based on her sex, including disrespect for her
integrity and dignity throughout the process. Furthermore, the family
of the perpetrator, communicated to the victim “harmful, threatening
and sexist statements”.[151]
Lastly, the sentence provided by the criminal code was life in prison,
but the Judge decided to sentence the perpetrator only to 6 years in
prison, due to his position of authority.[152]
Civil society organizations reported that the process to achieve the
conviction required a great deal of lobbying on their part since the
justice system still does not assume the responsibility to punish
these acts.

116.Civil
society organizations also communicated to the Commission the
immediate and recurrent release of many perpetrators who have been
arrested for acts of violence against women. The civil society
organization SOFA documented the following emblematic case
illustrating this problem:

D.E., a
16-year-old young woman and high school student lives with her mother
in Bizoton, community of Carrefour, and like almost all the girls in
her age group, has a boyfriend (…) On July 15, 2006, in the afternoon,
her boyfriend, out of jealousy, and after beating her, poured gasoline
on her and set her on fire (…) The doctor who examined the young woman
diagnosed “hypertrophic severe scars on her scalp and in a part of her
body.” The young man was arrested, but was released after a month in
detention and has made death threats to D.E.[153]
[IACHR’s translation]

117.In cases
related to family matters, civil society and services-organizations
also communicated to the Commission delegation key challenges they
face in seeking to obtain judgments. For example, in cases where the
female victim claims alimony, the procedure is slow and costly, with
legal costs and filing fees between 15,000 and 20,000 Gourdes plus
attorney’s fees.[154]
Moreover, the amounts set by the judges for alimony are often
insufficient to respond to the real needs of children.
[155] Furthermore,
there is a notable absence of monitoring mechanisms to guarantee
compliance with judicial decisions in alimony matters.
[156] The kidnapping of
children can be used as a strategy by the fathers to avoid providing
alimony or to pressure the mothers psychologically.
[157] In cases of
divorce, even though women hold the main responsibilities for their
children, some fathers claim and obtain custody as retribution. In
these cases, the children are cared for by the new wife or partner of
the husband.[158]

118.In cases
of violence, the problems described previously are compounded by the
fact that the authorities do not regard acts of discrimination and
violence against women as equally serious as other crimes. Therefore,
complaints by female victims are often trivialized by the courts, and
resolution of the matter may end in the payment of a fine or financial
compensation to the victim by the perpetrator, without pursuing a
criminal trial or imposing additional sanctions. Justice officials
may disregard evidence that is critical in identifying the guilty
parties and victims, and their next of kin can be mistreated and
disrespected during the investigation phase of the process.

119.One of the
most important challenges to the adequate investigation of cases is
the increasing reliance on testimonial evidence due to the absence of
resources, equipment and a strong forensic medicine system to obtain
other kinds of evidence. The Commission's report -Access to
Justice for Women Victims of Violence in the Americas- recommends
that protocols be designed for all officials involved in the
investigation, prosecution and punishment of violence against women
cases to facilitate and promote “the effective, uniform, and
transparent investigation of acts of physical, sexual, and
psychological violence, including a description of the probative
complexity of such cases, and the variety of evidence to be gathered
to provide adequate grounds for conviction, including scientific,
psychological, and physical evidence, and testimony.”[159]
This recommendation is very relevant to the investigation of cases in
Haiti.

120.One
notable advance is the requirement that doctors issue a certificate in
the case of injuries linked to sexual assault and that the issuance of
this certificate is free. The certificate is considered an essential
piece of evidence to bring cases of rape to the courts. In 2006 a
protocol was signed between the Ministries of Health, Justice and
Women to ensure that the certificate was issued free of charge.[160]
Subsequently, this requirement was also advertised in the newspaper by
the Ministry of Women, the National Network on Violence against Women
and the United Nations Population Fund.[161]
Despite this directive, the Commission was informed in August 2007
that it was not yet being enforced and that the requirement of issuing
the certificate is only binding on doctors practicing in public health
facilities.

2.
Treatment of Women Victims and Access to Legal Assistance

121.Haiti has
the duty to establish fair and effective procedures for women who have
been subjected to violence which include protective measures, a timely
hearing and an effective access to procedures. Additionally, the State
is bound to establish the necessary legal and administrative
mechanisms to ensure that women subjected to violence have effective
access to restitution, reparations or other just and effective
remedies.[162]

122.At
present, there is no state sponsored legal assistance program in Haiti
able to effectively meet the needs of indigent clients, including
women victims of violence. The Ministry of Women informed the
Commission that many civil society organizations currently provide
critical legal assistance to victims, to overcome the voids in the
current State-provision of services. Even so, only a handful of
organizations offer such services compared to a much greater
population in need of them. As such, the Commission underscores the
need for the State and the international community to prioritize the
provision of legal assistance for indigent populations, including
women victims of violence. Further, the Commission stresses the
importance of training the staff that provides services to women who
have been the victims of violence in the context of legal assistance
programs.

123.The
Commission is particularly troubled by the fact that female victims of
violence are disinclined to turn to the justice system. Even though
there has been a notable increase in reports of abuse, most cases of
violence against women still go unreported. There is also a strong
mistrust in that the justice system will be able to remedy the acts
suffered due to the pattern of impunity towards human rights
violations in Haiti. Several sectors, including the government, civil
society organizations and service-providers, noted how these problems
are compounded by the lack of accessible and effective legal services
free of charge for victims to pursue a claim before the courts. The
civil society services organization SOFA documented a case that is
emblematic of the reasons why victims are hesitant to turn to the
justice system when they are victims of violence:

This is a case of
the repeated rape of a 10-year-old girl. Over 4 years, the perpetrator
repeatedly raped and beat her. Following the December 6, 2006 assault,
the girl’s sister found her crying and she revealed what had happened.
Her parents, who had just found out, took their child to a private
clinic to undergo a gynecological exam and determine if she was
pregnant or if she had contracted a STD or AIDS. The doctor confirmed
that the girl had been a victim of repeated sexual assaults. As a
medical certificate provided by a private doctor is not valid in the
eyes of the courts, the victim was referred to a medical center and
l’Hopital de l’Université d’État d’Haiti. This institution issued a
medical certificate which confirmed the victim’s allegations. In fact,
the physical and gynecological exam demonstrated that the girl’s hymen
reflected old tearing. Until now, the parents of the victim remain
hesitant to turn to the justice system due to fear of reprisals by the
perpetrator.
[163]
[IACHR’s translation]

124.Civil
society organizations and service providers furthermore reported that
victims and their families are often mistreated when they attempt to
avail themselves of judicial remedies and have no confidence in the
ability of the justice system to remedy the wrongs committed. Other
factors that fuel this hesitation are the secondary victimization that
women victims experience by State officials when they attempt to
report the violence perpetrated against them, particularly the police;
the lack of judicial protections and guarantees to safeguard the
dignity and safety of victims and witnesses during the prosecution of
cases; the economic cost of judicial proceedings; and the geographic
location of the judicial bodies where such complaints would be filed
(typically far removed from the communities where such violations
occur). The justice system is largely absent from areas outside of
Port-au-Prince, which makes it very difficult for victims to report
violent crimes.

125.With
respect to the cases that do reach the justice system, parties are
frequently willing to reach a financial settlement of the case in
lieu of prosecution, a convenient arrangement proposed by the
perpetrator to avoid punishment, and conceded to by the judge and the
victim who receive monetary compensation. Kay Fanm communicated to the
delegation that rape cases, for example, are still considered "crimes
of honor" by the families of the victim, and therefore, they prefer to
financially settle with the perpetrator rather than to go through a
public judicial process. UNIFEM has described this issue as follows,
citing statements from civil society organizations:

The reports of
the Citizen Forum, which are constructed from fieldwork on the ground
across the country, describe a discriminatory and exclusionary penal
system that confirms the Haitian saying “justice belongs to the rich”.
The formal character of procedures demands the assistance of advocates
and practitioners; in the absence of a legal aid system, most Haitians
simply cannot afford justice. Kay Fanm also mentioned that one of the
major obstacles for helping victims of gender-based violence is the
prohibitive cost of justice.[164]

126.Moreover,
several civil society organizations communicated to the delegation how
major segments of Haitian society do not have access to education and
therefore to basic information on the workings of the justice system.
Furthermore, most legal texts are written in French, while the
majority of the population only speaks Creole. Service-providers such
as Kay Fanm, communicated to the delegation the increasing demand of
victims for information on existing legal services and processes in
family matters, including marriage, divorce, separation, division of
goods, child custody, and alimony, among others.[165]

3.
Response by Justice Officials to Cases of Violence and Discrimination

127.While the
failure to promptly and effectively process cases involving violence
against women is often attributed to structural, economic and
personnel-related factors; the failure to investigate the facts
reported and the inefficacy of the justice system in prosecuting and
punishing these cases can also be attributed to discriminatory
socio-cultural patterns that influence the behavior of officials at
all levels of the justice system. Justice officials do not regard
incidents of violence against women as a priority, do not take female
victims seriously, disregard evidence critical in identifying the
guilty parties, and are disrespectful to the victims and their
relatives when they try to cooperate in the investigation.

128.
Furthermore, the Commission has established that violence and
discrimination against women are still condoned in American societies,
as evidenced by the manner in which officials in the justice system
and the police respond to and treat cases of violence against women.[166]
The Commission has received information from a variety of sources
confirming the need to create and strengthen programs to train
officials and personnel in the justice system and the police about the
problem of violence against women as a serious human rights violation
and about their obligation to treat women victims in a respectful and
humane fashion when they turn to the police and the courts for
protection. The Commission considers a positive development that
network organizations, which promote the protection of the rights of
women, such as CONAP, have designed training programs for justice
officials. However, the Commission underscores the need for the
programs created to be institutionalized, and to include
accountability mechanisms to ensure permanent change.

D. Challenges in the Current Legislative, Public Policy and
Institutional Framework to Address Violence and Discrimination against
Women

129.The visits
of the Commission confirmed that there has been a noticeable and
historical absence of the State -in the spheres of legislation, public
policies and institutions- in addressing the issues of discrimination
and violence against women. Haiti is obligated to act with due
diligence by organizing its state structure to prevent and eradicate
acts of discrimination and violence against women. Notwithstanding the
human rights obligations of the Haitian State, the Ministry of Women
communicated to the delegation that since 2003, public servants have
been unable to respond to the prevalence of discrimination and
violence against women, particularly in the justice, police and health
sectors, and that the State lacks the resources needed to provide the
services required by the victims.

1.
Legislative and Public Policy Framework

130.The
Commission received information from a variety of sources confirming
notable omissions in the existing legislative framework to address
violence against women. In this sense, Haiti is still lacking a
comprehensive set of laws to address all forms of violence against
women in the public and private spheres.[167]
The government, however, is presently developing an ensemble of laws
to enhance the protection of women’s rights in the spheres of
discrimination and violence against women.

131.With
respect to the operating legal framework, Haitian courts apply a set
of legal codes adopted from the French legal tradition, which have not
been reformed to comply with human rights standards protecting women
against discrimination and violence, although the Haitian
Constitution of 1987 embraces the principles of equality and
non-discrimination. However, the Haitian civil and penal codes require
significant reforms in order to harmonize these texts with Haiti’s
international obligations under the Convention of Belém do Pará and
CEDAW.

132.The
Haitian Civil Code was partially amended in October of 1982. Before
then, the code contained discriminatory provisions towards women based
on stereotypes of their social roles, including the husband’s
obligation to protect the wife and to support her, and the wife’s
obligation to obey the husband, and to live and follow him wherever he
chose to reside.[168]
The 1982 amendment decree still places the male spouse in a position
of authority with respect to his wife, especially in regards to the
administration of property and resources within the marriage. [169]
Apart from the civil code of Haiti, the Haitian Government issued a
specific decree in February 1981 on the elimination of racial
discrimination, which included a definition of discrimination that
specifically referred to discrimination based on sex in Articles 8 and
9.

133.With
respect to the normative framework on violence against women, and
given Haiti’s ratification of the Convention of Belém do Pará in 1996,
an Executive Decree was issued in July 2005.[170]
This Decree introduced changes to existing provisions in the Haitian
criminal code regarding the penalties for acts of sexual violence
against women, and modified other provisions that were deemed to be
discriminatory and in violation of Haiti’s obligations under the
Convention of Belém do Pará.[171]

134.For
example, prior to the adoption of the Decree, rape was categorized as
“attentats aux moeurs” (offense against morals) and the penalty
was limited to ‘reclusion’.[172]
The July 2005 Decree reclassified rape as a crime of “aggressions
sexuelles” (sexual aggression). Accordingly, the July 2005 Decree
modified the penalty for rape and all other acts of sexual aggression
to ten years of forced labor and further elaborated on the elements
constituting rape or acts of sexual aggression. Specifically, Article 2 of the Decree
provides that:

Article 278 of the criminal code from now on reads as follows: Anyone
who has committed a crime of rape, or is guilty of any other sexual
aggression, consumed or attempted with violence, threats, surprise, or
psychological pressure against a person, regardless of sex, will be
punished with ten years of forced labor.[173]
[IACHR’s translation].

135.
Furthermore, the Decree provides for a more specific penalty when the
crime of rape or sexual aggression is committed against a person
younger than fifteen years old. In this case, the Decree specifies the
penalty as fifteen years of forced labor, whereas the criminal code
provided the penalty of forced labor without specified time duration.[174]

136.Further,
the law on adultery previously reflected unequal treatment between
women and men, excusing a husband from criminal liability for the
murder of his wife if caught in the act of adultery, while a woman
could be charged and sentenced to prison for up to two years for
committing the same offense.[175]
In this sense, Article 10 of the July
2005 Decree states:

Article 269 of the
criminal code from now on reads as follows: Murder of a spouse
by the other spouse, regardless of sex, is not excusable unless the
life of the spouse who has committed the murder was endangered at
that time.[176][IACHR’s
translation].

137.Even
though the Haitian State has ratified the Convention of Belém do Pará
and CEDAW, and noticeable efforts have been made in the sphere of
legislation in recent years, cases of rape continue to be seldom
prosecuted and justice officials have not been trained on how to
appropriately address these cases. Efforts to implement laws are also
challenged by the prevalence of discriminatory socio-cultural beliefs
and practices that perpetuate the treatment of women as inferior and
the social acceptance of different forms of violence against women.

138.The
Ministry of Women has identified a number of challenges that
negatively influence the effective implementation of existing
legislation and public policies to address discrimination and violence
against women in all sectors. Among these are the deficient national
funding for specialized services for women; a consistent reliance on
international assistance; the concentration of most attention services
in Port-au-Prince; the need to construct shelters for victims of
violence; and the need for a centralized information system.[177]
Furthermore, international organizations such as UNIFEM have
identified political and parliamentary instability as obstacles to
legislative change, because legislative decrees only become effective
when a new parliament is formed.[178]

a.
Preventive Measures to Reduce the Incidence of Violence against Women

139.
Notwithstanding the abovementioned state sponsored initiatives to
respond to the situation of violence and discrimination against women,
the Commission observes a notable gap between the State’s obligations
and the effective protection of women from violence. The Commission is
particularly concerned by the absence of legal measures to protect and
prevent imminent acts of violence against women. Both State and
non-state sources confirm that State authorities -the police in
particular- fail to fulfill their duty to protect women victims of
violence against imminent threats. Civil society organizations
communicated to the delegation that women do not trust that the police
will be able to respond upon notification of an imminent act of
violence.

140.The report
of the Commission on access to justice for women victims of violence
in the Americas found that state authorities –the police in
particular- are not fully complying with their duty to protect women
victims of violence against imminent threats throughout the
Hemisphere, particularly severe in the case of intra-family violence.[179]
The inaction on the part of state authorities is in part explained by
their tendency to disbelieve the allegations made by women victims of
violence and their perception of intra-family violence as a private
and low-priority affair. In many cases, women have been killed even
after seeking the State’s preventive protection; in some cases,
restraining orders were issued to protect women but then not properly
enforced or monitored.
The United Nations Special
Rapporteur on violence against women has recently
expressed concern over the conduct of the police and their failure to
intervene to prevent acts of violence and to implement protection
orders, and has ranked this among the main obstacles to the practice
of due diligence at the global level.[180]
Conducts of this kind are a breach of the States’ obligation to
practice due diligence to prevent violence against women.

141.The
inaction on the part of Haitian State authorities is partially
attributable to an inherent tendency to be suspicious of the
allegations made by women victims of violence and the perception that
such matters are low priority within the insecurity context in Haiti.
For example, the services organization Kay Fanm communicated to the
delegation that the treatment of the victim by the police when filing
a complaint of violence, depends heavily on the way the victim looks
or is dressed. Furthermore, they communicated that the police treats
sexual violence cases as more serious than intra-family violence
cases, despite the fact that most of the victims seeking assistance
from civil society organizations are in fact victims of intra-family
violence. The Director General of the Haitian National Police
communicated to the delegation that discrimination against women is
prevalent within the police force, and confirmed the need to train
officers to treat women with integrity and dignity.

2.
Institutions and Services

142.The
Commission observes with particular concern the historical absence of
the State in providing needed services for women victims of violence.
There are few specialized services provided to women victims of
violence and the majority of these are provided by non-state service
groups and human rights organizations. To date, there is no state-run
entity charged with providing legal, health, shelter, counseling and
support services to women who are victims of violence.

143.The
Commission received information from the Ministry of Women confirming
that the State is largely unable to provide these services due to
resource and capacity constraints. According to information provided
by the government, the national budget does not allocate specific
funds for prevention, punishment and elimination of violence against
women.[181]
Hence, most services are offered by civil society organizations such
as Fanm Deside, Gheskio, SOFA, Kay Fanm and ENFOFANM. In the interim,
the Ministry of Women has signed an agreement with these organizations
to provide services for victims. Service-providers consulted for this
report in turn highlighted numerous challenges in providing services
for victims, most notably the lack of human and financial resources.
In this sense, the government recognizes that the number of crisis
centers is “far from adequate” to meet the needs of female victims,
considering the high number of cases of violence received.[182]

144.In regards
to the services that are indeed provided by the State, information
collected during the Commission’s visits reveals that they are slow to
be implemented and are not yet fully operational. Furthermore, the
Commission notes that the initiatives are not necessarily supported
with the required human and financial resources for their operations
to be effective. During the visits, the Ministry of Women
particularly regretted the absence of a state-run shelter for women
and the lack of free legal services for indigent women victims of
violence.[183]
Minister Lassegue indicated that the existing shelters for abused or
victimized women are run by civil society organizations, which have
limited space for the numbers of women in need of assistance. In the
interim, civil society organizations have developed an expertise in
providing specialized services, and have been critical in meeting the
needs of women victims of violence. However, the availability of such
services across the country appears to be much lower than the numbers
of women affected by violence.

145.The
Commission stresses that it is important that the State enhances its
capacity to provide specialized services to women affected by
violence. Similarly, the Commission encourages the strengthening of
the network established by the Ministry of Women (the Table de
Concertation Nationale), in order to ensure that a greater number
of women can access specialized services.

a.
Impact of Violence against Women and Access to Medical Services

146.Violence
affects women in various ways, including consequences on their
physical, psychological and emotional health in the short and long
term. In some cases it deprives women of the opportunity to work or
engage in economic activities to support themselves and their
families. The Commission has identified some of the effects of such
violence on victims: the trauma that accompanies the act; the
rejection and stigmatization by their communities, families and
partners; unwanted pregnancies; sexually transmitted infections;
chronic pain; physical disability; drug abuse and depression; among
others.[184]

147.According
to service providers in Haiti, the immediate consequences of physical
and sexual violence on women can be significant and seriously
damaging, requiring urgent and specialized attention. The Haitian
services organization Kay Fanm describes the effects of violence
against women as follows:

As direct victims
of violence, women suffer serious consequences to the physical health
(hemorrhages, broken limbs, multiple injuries and bruises) and to the
mental health (loss of self-confidence and sense of self-worth,
feelings of guilt, fear of sexual relationships, anxiety attacks,
psychosis and depression). The victims rarely benefit from appropriate
care. Not only due to the insufficiency, inaccessibility (both
geographic and economic) and the inadequacy of public health
facilities, but also because victims usually experience violence in
isolation, which results from their exclusion or their marginalization
from the public sphere (they find it difficult to establish
relationships) and their social “invisibility.” Their feelings of
shame make victims avoid addressing the consequences of the abuse
suffered.[185]
[IACHR’s translation]

148.The
Commission, based on findings by the World Health Organization and the
Pan American Health Organization (hereinafter "PAHO"),
recognizes the need for victims of gender-based violence to receive a
range of specialized and multi-disciplinary State services to mitigate
the impact of the acts suffered including health services and
information on where to file complaints to obtain a remedy.[186]

149.In cases
of violence against women in Haiti, some of the effects of violence
may include gunshot wounds, injuries from physical attacks with knives
or machetes, beatings, psychological abuse, and other forms of
cruelty. Furthermore, acts of gang rape, in some cases coupled with
other forms of abuse, have been more frequent in recent years. Such
practices have resulted in victims suffering from serious bodily
injuries and in some cases irreparable harm to their reproductive
organs, long-term health problems and emotional trauma.

150.Haiti has
the highest rate of adults affected with HIV in all of the Caribbean.
PAHO reported that the total number of Haitian adults infected with
HIV to be 240,000. Of these, 120,000 are women between the ages of
15-49, or 50% of the adult population infected with HIV.[187]
In contrast, PAHO reports that 1.4 million people are living with
HIV/AIDS in Latin America (30% of which are women), and 420,000 in the
Caribbean (50% of which are women).[188]

151.Available
information reveals the overall HIV prevalence in Haiti to be
estimated at 3.5% to 4%.[189]
With respect to the HIV infection rate within Haiti, UNAIDS indicated
that “one-third of Haiti’s HIV cases are in the country’s West
department, which includes Port-au-Prince, and most of them are among
women. The Ministry of Public Health further reported in 2006, that
the HIV rate amongst young girls is twice as great as that of boys.”[190]

152.In this
context, sexual violence constitutes a key vehicle in the spread of
HIV/AIDS infection and other STI’s amongst women.[191]
The HIV transmission through acts of sexual violence is understood by
many practitioners to be very high, especially when the majority of
gang members are in a high-risk category and do not regularly use
protection against sexually transmitted infections.[192]

153.
Furthermore, many rape cases result in involuntary pregnancies, which
place additional burdens on the victims, especially those of an
economic nature. A number of first hand accounts received by the
Commission indicate that once the family of a victim is aware that the
young woman or girl is pregnant, she is either forced to marry the
perpetrator (in cases where the perpetrator is a neighbor or resident
in the community), or thrown out of her home (in cases where the
perpetrator is a member of an armed gang, or in cases of intra-family
violence where the perpetrator is a relative of the victim).

154.Female
victims of physical and sexual violence also experience emotional and
psychological trauma. Due to the fact that this is considered a taboo
subject, women victims tend to suffer in silence for fear of being
rejected by their families and community. Women victims experience
depression and social alienation, fear for their safety or lives, and
in some cases, commit suicide due to the lack of support from their
community or the failure to receive psycho-social counseling services.
In particular, since 2004, there have been a higher number of suicides
amongst women victims of violence due to the inability to speak
publicly about their situation.[193]

155.Women’s
rights advocates and social workers stressed the serious impact of
violence against women on the economic livelihood of the victim and
her family, given the current socioeconomic conditions of Haitians,
and particularly Haitian women. While studies show that a majority of
women in Haiti are single heads of households, first-hand accounts
from residents indicate, and humanitarian workers in affected
communities confirm, that armed groups have increasingly targeted
female heads of households on the premise that women are less likely
to resist intrusion.

156.The
Commission observes that women’s access to medical treatment for
injuries due to physical or sexual violence constitutes one of the
primary and most immediate types of services required. The Convention
of Belém do Pará states that victims of sexual violence are entitled
to the recognition, enjoyment, exercise, and protection of all their
human rights, including the civil, political, economic, social, and
cultural rights enshrined in regional and international human rights
instruments. The Commission has underscored that women cannot fully
enjoy their human rights without having a timely access to
comprehensive health care services, and to information and education
in this sphere.[194]
The Commission has also established that the health of sexual violence
victims should be treated as a priority in legislative initiatives and
in the health policies and programs of Member States.[195]

157.Some
victims lack awareness of and information about the negative health
consequences of sexual violence and the urgent measures required to
prevent further harm. Consequently, most victims do not seek medical
treatment after being raped unless they have sustained serious
injuries requiring medical attention. To illustrate this point, one
humanitarian worker in Cité Soleil confirmed that for many women
living in the poorest communities, rape constitutes the first sexual
experience.[196]
The Independent Expert for the United Nations Secretary-General’s
Study on Violence against Children has identified this phenomenon as a
global issue.[197]
Furthermore, it is frequent to find cases where the victim has been
repeatedly violated prior to seeking medical assistance.

158.The
Commission has found that the accessibility and quality of public
health facilities in Haiti available to the general public remains
extremely poor. Within this context, the availability of specialized
services for women victims of violence is even more limited. In 2007,
the Ministry of Public Health released a report that provides the most
updated figures on the situation of Haiti’s public health sector and
the services available nationwide for women victims of violence. The
report notes that sexual violence constitutes a serious problem in
Haiti and expresses concern for the impact of the rate of sexual
violence on the growth of the HIV infection rate in the country. For a
population of approximately 8.5 million inhabitants, the report states
that there are 33 health care centers nationwide providing specialized
treatment for victims of sexual violence. However, the distribution of
these centers is extremely imbalanced amongst the ten administrative
departments of the country: (8) West; (1)
South-east; (4) North; (1) North-east; (5) Artibonite; (8) Center; (3)
South; (1) Grande Anse; (1) Nippes; (2) North-west.[198]

159.The West
department, comprised of the capital city and 14 administrative zones,
is the most populated sector of the country and where most acts of
armed violence have occurred since 2004. This department has a total
of 213 public health care centers, eight of which provide specialized
services for victims of sexual violence. Finally, the Ministry of
Public Health reported that for residents of Port-au-Prince a victim
of sexual violence has a 4% chance to access specialized services,
while in the rest of the 14 communities of the West department, there
is a 0% probability for victims to access specialized services.

160.In
conclusion, while public health care facilities equipped with
specialized services for victims of sexual violence exist in several
parts of the country, this number remains largely inadequate in
comparison to the percentage of victims in need of medical attention
as a result of sexual violence. Aside from poor accessibility to
public health care facilities, the Commission notes additional factors
adversely affecting women’s access to medical services. In particular,
women victims of violence tend to reside in poor and marginalized
communities, which have also been severely affected by armed violence.
This has created an especially vulnerable situation for the women
living in these districts.

3.
Truth, Justice and Reparations

161.
International principles uphold the right of victims of human rights
violations to “adequate,
effective, prompt and appropriate” reparation that is proportional to
the wrong suffered.[199]
The reparation must be comprehensive and should include guarantees of
restitution, compensation, rehabilitation, satisfaction and
non-repetition.[200]
The Commission has established that this right also applies to women
victims of violence and discrimination.[201]

162.The
Convention of Belém do Pará urges States to establish the judicial and
administrative measures necessary to ensure that women who have been
subjected to violence and discrimination effectively access
restitution, reparation of the damage, or other just, and effective
means of compensation. Similarly, Resolution 1325 of the United Nations
Security Council underscores “the responsibility of all States to put
an end to impunity and to prosecute those responsible for genocide,
crimes against humanity, war crimes including those relating to sexual
violence against women and girls, and in this regard, stresses the
need to exclude these crimes, where feasible from amnesty provisions.”[202]

163.In this
context, it is indispensable that the Haitian State guarantees the
rights of women in the investigation and punishment of acts of
violence and discrimination which have occurred in the past and are
occurring in the present, as well as ensures the adequate reparation
of the harm done, through measures of restitution, indemnity and
rehabilitation.

164.In this
report, the Commission conveys and reiterates its grave concern over
the suffering of Haitian women due to a situation of widespread and
systematic violence and discrimination. The Commission also
underscores the importance of considering the specific needs of women
in the public and institutional response to these problems and the
overall security situation in Haiti. Under the current circumstances,
Haitian women cannot fully exercise their rights under the American
Convention, the Convention of Belém do Pará, and other international
instruments. The problems of discrimination and violence against women
remain taboo and hidden issues in Haiti, which leaves the victims with
a sense of insecurity, defenselessness and mistrust that the acts
suffered will ever be remedied, and that their physical and emotional
scars will ever be healed.

165.As
discussed in this report, the problems of discrimination and violence
against women in Haiti are inter-connected and involve an extremely
complex set of social, cultural and economic factors, demanding
comprehensive and multidisciplinary solutions that can no longer be
postponed. Pursuant to its human rights obligations, the Haitian State
is obligated to exercise due diligence to prevent, punish, and
eradicate the widespread discrimination and violence against women.

166.The
recommendations in this report are geared towards the design and
enforcement of a national State policy that considers the forms of
discrimination and violence that affect women in Haiti, during times
of peace and political unrest, in order to achieve progress in the
diagnosis, prevention and response to these problems, and the
incorporation of the specific needs of women in the public agenda. In
the current context, the Commission is encouraged by the demonstrated
good will and commitment of the Ministry of Women in developing an
action plan to eradicate discrimination and violence against women in
Haiti and its efforts to involve a number of sectors in the
implementation of said plan.

167.The
Commission underscores that it is important that this plan include a
multi-sectoral approach to address these problems, supported by an
adequate allocation of human and financial resources to make its
provisions a reality. The Commission also emphasizes the role and
responsibility of all government sectors to actively participate in
its national implementation. Some steps that the State has undertaken
display an understanding of the gravity of the existing problems and
its commitment to consider the specific needs of women in the adoption
of measures to prevent, punish and eradicate existing discrimination
and violence against women.

168.Since
violence against women is a symptom and consequence of discrimination,
the recommendations in this report also call on the Haitian State to
adopt urgent measures to educate the general population with the
objective of eradicating socio-cultural patterns that promote the
treatment of women as inferior and perpetuate their unequal treatment
in society. Such actions are critical in order to eradicate the
problem of discrimination and the structural inequalities women
currently face, as well as to prevent further acts of violence.

169.The IACHR
wishes to thank the State of Haiti for the cooperation and support
provided during the several on-site and working visits of the
Commission to Haiti to investigate the human rights situation and
conduct research in preparation of this report. Further, the
Commission expresses its sincere appreciation to non-governmental
organizations, civil society institutions and international agencies
for their contributions in the preparation of this report. Finally,
the IACHR Rapporteur on Haiti would like to especially thank the
victims and victim’s groups for their enriching contributions and
insights which enabled the Commission to gain an intimate
understanding of the complex nature of the problem, and wishes to
commend these individuals on their courage to share their experiences
with the Commission, despite the risks and difficult circumstances in
which they live, and without which this report could not have been
written.

General
Recommendations

1.To adopt
an integral state policy to address the specific needs of women and
the problems of discrimination and violence they face, supported by
sufficient human and financial resources, and implemented by all key
sectors and Ministries.

2.To adopt
public policies and programs designed to reconfigure the stereotypes
and social conceptions about the role of women in society and to
promote the eradication of discriminatory social patterns that
obstruct their full access to justice; these public policies should
include training programs and comprehensive prevention policies.

3.To adopt
legislation, public policies and programs to effectively address
inequalities between men and women in the Haitian society, especially
in the labor, education, health, political participation and family
spheres.

4.To
swiftly adopt legislation that adequately protects women and girls
from acts of violence –physical, sexual and psychological– in the
private and public spheres. To earmark sufficient resources and to
enact the necessary regulations to ensure their effective
implementation nationwide.

5.To
develop educational programs for the public, from a formative and
early age, in order to cultivate respect for women as equals, the
recognition of their particular needs, and their right to be free from
violence and discrimination.

6.To
strengthen the capacity of institutions to combat the pattern of
impunity in cases involving violence and discrimination against women,
through effective criminal investigations that bring cases to trial,
thereby ensuring that the crimes are properly punished and victims
receive reparations.

7.To
provide female victims with accessible and effective legal services
free of charge to pursue a claim before the courts and to create
specialized centers to provide multidisciplinary services to victims
of violence, including legal, medical and psychological.

Specific
Recommendations

Legislation,
Public Policies, Programs and Services

8.To adopt
integral and multi-disciplinary measures for the strengthening of the
existing judicial and legal framework with the objective of
guaranteeing the adequate protection of women from acts of violence
and discrimination, according to the State’s international
obligations, particularly the Convention of Belém do Pará.

9.To
scrutinize all norms, practices and public policies that create
differences in treatment based on sex or that can have discriminatory
effects with respect to women by the legislative, executive and
judicial branches of the Haitian State.

10.To adopt
government programs that seek to provide support services to women
victims of violence to assist them in coping with the emotional trauma
and psychological effects caused by acts of violence, in particular
sexual violence. To create specialized centers accessible to all women
victims of violence -regardless of their geographic location-, in
order to provide multidisciplinary services to victims of violence,
including legal, medical and psychological, and to allocate sufficient
human and financial resources for their effective functioning.

12.To adopt
measures to ensure that doctors and medical personnel comply with the
requirement that medical certificates are issued for free to victims
of sexual violence.

Administration of justice

13.To create
a nationwide system for recording statistical and qualitative data on
acts of discrimination and violence against women within the
administration of justice system, which should include up-to-date,
reliable statistics providing information on all the actors that
perpetuate discrimination and violence against women in Haitian
society.

14.To
strengthen the functioning of the specialized units created within the
Office of the Ombudsman and the Haitian National Police (“Brigade des
Mineurs”) to address the specific needs of women and girls, through
the adequate assignment of human and financial resources, the
institutionalization of appropriate training and capacity-building
programs, and the strengthening of police presence in rural areas.

15.To
circulate information nationwide about the judicial resources
available to women victims of violence, in Creole and French.

Investigation, Prosecution and Punishment of Acts of Violence and
Discrimination against Women

16.To adopt
measures to prevent and punish acts of violence and discrimination
against women while in detention, by State actors, including security
forces and prison guards. To create effective complaint mechanisms for
women in detention.

17.To
strengthen the capacity of judicial institutions, including the public
prosecutor’s office, the Haitian National Police and the courts, by
increasing the financial and human resources they have to combat the
pattern of impunity in cases involving violence and discrimination
against women.

18.To design
protocols to facilitate and promote the effective, uniform and
transparent investigation of acts of physical, sexual and
psychological violence, which include a description of the detailing
of the evidence and an itemization of the minimum evidence that needs
to be gathered to properly substantiate a case: scientific,
psychological, physical evidence and testimony. Multidisciplinary
investigation of these crimes needs to be encouraged.

19.To take
steps in order to provide female victims with accessible and effective
legal services free of charge to pursue violence and discrimination
claims before the courts and to take efforts to address the challenge
of the absence of justice institutions in rural and marginalized
areas.

Treatment of
Victims by Judicial Protection Entities

20.To take
immediate steps to ensure that the public officials involved in
prosecuting cases of violence and discrimination against women
(including prosecutors, police, judges, court-appointed attorneys,
administrative personnel and forensic medicine professionals) are
properly educated about women’s rights so that they apply the domestic
and international laws to prosecute these crimes properly and so that
the integrity and dignity of the victims and their relatives are
respected when the complaints are filed and during their involvement
in the judicial process.

21.To
provide effective judicial protections and guarantees so that women
victims are able to report acts of violence, including measures to
effectively safeguard the safety of complainants, survivors and
witnesses, and measures to protect their privacy, dignity and
integrity when filing reports and throughout the criminal proceedings.

23.To devise
and institutionalize training programs geared toward all state
officials involved in the monitoring and supervising protective
measures and initiatives intended to prevent acts of violence against
women -particularly in the case of the police-, to instruct them about
the need to ensure proper enforcement of and compliance with these
measures, and the consequences of non-compliance and non-enforcement.
To adopt measures to sanction state officials who do not properly
monitor these measures.

The
Rapporteurship on the Rights of Women of the IACHR and its mandate

The
Rapporteurship on the Rights of Women of the IACHR (hereinafter "Rapporteurship")
was created in 1994 with the initial mandate to review the extent to
which Member States legislation and practice that affect the rights of
women comply with the general obligations of regional human rights
instruments such as the American Convention on Human Rights ("American
Convention") and the American Declaration of the Rights and Duties of
Man ("American Declaration"). By creating the Rapporteurship, the IACHR
reaffirmed its commitment to promote the full respect of the rights of
women within each Member State.

Since its creation, the Rapporteurship has collaborated in the daily
work of the Commission by publishing thematic studies, supporting the
formulation of new jurisprudence within the individual case-system, and
by promoting the investigation of themes affecting the rights of women
in specific countries in the region through on-site visits and country
reports.

After extensive study and analysis, the IACHR and the Rapporteurship
first published its Report on the Status of Women in the Americas
to provide an overview of the situation and formulate recommendations to
assist Member States to eradicate discrimination from their legislation
and practice, at the same time establishing priorities for future
measures by the Rapporteurship and the IACHR. The human rights
principles of equality and non-discrimination are still the guiding
points in selecting the topics to be addressed by the Rapporteurship.
The IACHR and its Rapporteurship also place special emphasis on the
problem of violence against women, which in itself is a manifestation of
gender-based discrimination, as recognized by the Convention of Belém do
Pará.

The
Rapporteurship facilitates the clear understanding of which additional
measures are needed to enable women to fully exercise their basic rights
and issues special recommendations geared toward reinforcing compliance
by Member States with their priority obligations regarding equality and
non-discrimination. The Rapporteurship also promotes the use of the
Inter-American Human Rights system mechanisms, such as the individual
petition system, to enhance the protection of women’s rights; prepares
specialized studies and country reports on these issues; and helps the
IACHR respond to petitions and other reports on violations of these
rights in the region. Two of the reports of the Rapporteurship are
The
Situation of the Rights of Women in Ciudad Juarez, Mexico: the Right to
be Free from Violence and
Discrimination and Violence and
Discrimination against Women in the Armed Conflict in Colombia,
which can be found in the web portal of the IACHR, http://www.cidh.oas.org.

Moreover, the work
program of the Rapporteurship during the past two years has been
designed to address a priority challenge for the rights of women
throughout the Hemisphere: how to ensure that women can effectively
access justice, particularly women who have been subjected to violence
and discrimination. As a result of this process, the Rapporteurship in
2007 launched the regional thematic report: Access to Justice for
Women Victims of Violence in the Americas, where it examines the
main obstacles that women encounter when they seek effective judicial
protection to redress acts of violence. In the report, the IACHR draws
conclusions and makes recommendations about what States need to do to
act with the due diligence necessary to offer an effective and prompt
judicial recourse when these incidents occur. The report’s analysis is
based on findings drawn from the data compiled from a variety of
sources, including the justice systems, civil servants and government
representatives, civil society, academia and women of differing races,
ethnic backgrounds and socio-economic circumstances. The Rapporteurship
prepared the present report for the last two years, with financial
support from the Government of Finland. The information compiled has
been coupled with the results of the work of the IACHR: its case
decisions, the thematic hearings held at headquarters, its thematic
reports, the country reports’ chapters on women’s rights, and in loco
visits organized by the IACHR and the Rapporteurship.

The
priority granted by the IACHR and by its Rapporteurship to the
protection of the rights of women reflects the importance granted to
these issues by the OAS Member States. In particular, the Action Plan
adopted by the Heads of State and Government during the Third Summit of
the Americas recognizes the importance of empowering women and fully and
equally involving women in the development, political life and
decision-making at all levels. To this effect, the Action Plan underpins
the Inter-American Program to Promote Women’s Human Rights and Gender
Equity and Equality, as well as other regional initiatives geared toward
implementing the commitments stipulated in the Declaration of Beijing
and its Action Platform.

[104]
See I/A Court H.R., Velásquez RodríguezCase. Judgment
of July 29, 1988. Series C No. 4. A series of Inter-American
Conventions also establish the express obligation of the State to
act with due diligence to protect human rights. See, for example,
Article 6 of the Inter-American Convention against Torture and
Article 7(b) of the Convention of Belém do Pará.

[105]
According to the official documents deposited at the OAS Department
of International Law, on April 3, 1996, the legislative branch of
the Haitian State signed the Convention of Belém do Pará.

[106]
See Convention of Belém do Pará, Preamble, Articles 4 and 6. The
Commission has discussed the serious consequences that
discrimination against women and the stereotypical notions of their
role in society can have, including violence against women.
See IACHR, Merits Report, Nº 4/01, Maria Eugenia Morales
de Sierra (Guatemala), January 19, 2001, para. 44.

[111]
The principle of due diligence was initially established by the
Inter-American Court of Human Rights in its ruling on the case of
Velásquez Rodríguez, Judgment of 29 July
1988, stating: “It is the obligation of the Member States to
’guarantee‘ the free and full enjoyment of rights recognized in the
Convention for all persons subject to their jurisdiction [.....] As
a consequence of this obligation, States must prevent, investigate
and punish all violations of the rights recognized by the
Convention,” I/A Court H.R., Velásquez RodríguezCase.
Judgment of July 29, 1988. Series C No. 4. para. 166.

[114]
Article 19 of the American Convention must be interpreted as a
complimentary right that the treaty establishes for human beings
given their physical and emotional development, which require
special protective measures. I/A Court H.R., Juridical Condition
and Human Rights of the Child. Advisory Opinion OC-17/02 of
August 28, 2002. Series A No. 17, para 54. I/A Court H. R., Case
of the “Juvenile Reeducation Institute”. Judgment of September
2, 2004. Series C No. 112, para. 147.

[115]I/A
Court H.R., The “Street Children” Case (Villagrán Morales et
al.). Judgment of November 19, 1999. Series C No. 63, para. 194.
In this trend, the Inter-American Court has established that “[i]n
the light of Article 19 of the American Convention, the Court wishes
to record the particular gravity of the fact that a State Party to
this Convention can be charged with having applied or tolerated a
systematic practice of violence against at-risk children in its
territory.” I/A Court H.R., The “Street Children” Case (Villagrán
Morales et al.). Judgment of November 19, 1999. Series C No. 63,
para. 191.

[116]
See for example Articles 16, 19 and 34 of the UN Convention on the
Rights of the Child.

[119]The UN
World Report on Violence Against Children, Paulo Sérgio Pinheiro,
Independent Expert for the United Nations Secretary-General’s Study
on Violence against Children, 2006, p. 317, available at:
http://www.violencestudy.org/a553.

[120]
The UN World Report on Violence Against Children, Paulo Sérgio
Pinheiro, Independent Expert for the United Nations
Secretary-General’s Study on Violence against Children, 2006, pp.
19-20, available at:
http://www.violencestudy.org/a553.

[121]
IACHR, Violence and Discrimination against Women in the Armed
Conflict in Colombia, OEA/Ser/L/V/II.124/Doc.6, October 18,
2006, para. 140.

[122]
United Nations, Convention on the Elimination of All Forms of
Discrimination against Women, General Recommendation 19, Violence
against Women, U.N. Doc. HRI/GEN/1//Rev.1, p. 84, para. 11
(1994).

[124]
The current President of Haiti also issued a statement on November
25, 2006, the international day against violence against women,
calling for action to address the prevalence of the issue.

[125]
The majority of organizations that met with the Commission during
its visits highlighted the importance of this initiative.

[126]
Some of the members of the Table de ConcertationNationale
that provide specialized medical services receive limited financial
support from the State for the treatment of sexual violence cases.
The first shelter for women victims of violence established in Haiti
was Kay Fanm. This organization offers women and girls temporary
refuge and support. Some other institutions offering the same types
of services are SOFA, MOUFED, URAMEL, among others.

[132]
Observations of the State of Haiti to the draft report “The Right of
Women in Haiti to be Free from Violence and Discrimination”,
received by the IACHR on February 4, 2009, note JUR/09/PTM/jmm-0070.

[133]
Observations of the State of Haiti to the draft report “The Right of
Women in Haiti to be Free from Violence and Discrimination”,
received by the IACHR on February 4, 2009, note JUR/09/PTM/jmm-0070.

[134]
Article 20 of the Criminal Code of Haiti (11 August 1835) states:
“every person of either sex condemned to a penalty of ‘reclusion’
will be held in a house by force, with the possibility to work and
retain partial profit, under the supervision of the government. The
duration of this penalty ranges from three to nine years”. [IACHR’s
translation].

[135]
Articles 279 and 20, Criminal Code of Haiti, 11 August 1835. Sources
confirm that following the July 2005 Decree, courts have sentenced
perpetrators to prison penalties in lieu of forced labor,
according to the practice of Haitian courts.

[136]
Observations of the State of Haiti to the draft report “The Right of
Women in Haiti to be Free from Violence and Discrimination”,
received by the IACHR on February 4, 2009, note JUR/09/PTM/jmm-0070.

[137]
Interview by IACHR with Myriam Merlet, Chief of Cabinet, Ministry of
Women, October 2006.

[138]
See OAS, Inter-American Commission on Women, Questionnaire on the
Evaluation of the Application of the Convention of Belém do Pará
(Haiti), OEA/Ser.L/II/7.10, MESECVI/CEVI/doc.25/06, July 12, 2006.

[140]
Information confirmed by the State of Haiti in its observations to
the draft report, “The Right of Women in Haiti to be Free from
Violence and Discrimination”, received by the IACHR on February 4,
2009, note JUR/09/PTM/jmm-0070.

[141]
Information confirmed by the State of Haiti in its observations to
the draft report, “The Right of Women in Haiti to be Free from
Violence and Discrimination”, received by the IACHR on February 4,
2009, note JUR/09/PTM/jmm-0070.

[142]
Information confirmed by the State of Haiti in its observations to
the draft report, “The Right of Women in Haiti to be Free from
Violence and Discrimination”, received by the IACHR on February 4,
2009, note JUR/09/PTM/jmm-0070.

[143]
Information confirmed by the State of Haiti in its observations to
the draft report, “The Right of Women in Haiti to be Free from
Violence and Discrimination”, received by the IACHR on February 4,
2009, note JUR/09/PTM/jmm-0070.

[144]
See IACHR, Haiti: Failed Justice or The Rule of Law: Challenges
Ahead for Haiti and the International Community, OEA/SER/L/Vii.123
(2005). See also, IACHR, Access to Justice for Women Victims of
Violence in the Americas, OEA/Ser.L/V.II.Doc. 68, 20 January
2007.

[145]
The State has confirmed in its observations that between the period
of April and September of 2008, fifteen criminal processes resulted
in 15 convictions of rape. Observations of the State of Haiti to
the draft report “The Right of Women in Haiti to be Free from
Violence and Discrimination”, received by the IACHR on February 4,
2009, note JUR/09/PTM/jmm-0070. Information provided during the
Commission’s visit to Haiti by civil society organizations pointed
to at least five documented convictions for rape.

[146]
Observations of the State of Haiti to the draft report “The Right of
Women in Haiti to be Free from Violence and Discrimination”,
received by the IACHR on February 4, 2009, note JUR/09/PTM/jmm-0070.
In its observations, the State mentions as an example of the effect
of the 2005 Decree the case of a female TV artist who was killed by
her spouse and how the justice system undoubtedly convicted the
perpetrator.

[147]
This case took place at the Tribunal Civil, Gonaives, on July 29,
2005. The
accused was found guilty and sentenced to 18 months. See SOFA,
Programme d’Accueil et d’Accompagnement des femmes/filles victimes
de violence, Femmes accueillis à la SOFA – Accompagnement
Juridique: Informations sur cinq (5) procès de viol.

[148]
1) The accused was found guilty and sentenced to 6 years and 250.000
gourdes in damages (Tribunal Civil, Gonaives, July, 19 2006); 2) the
accused was found guilty and sentenced to forced labor for life and
500.000 gourdes in damages (Tribunal Civil, Port-au-Prince, March
8-22, 2006); 3) the accused was found guilty and sentenced to 3
years in prison and 50.000 gourdes in damages (Tribunal Civil,
Port-au-Prince, July 24, 2006); 4) the accused was found guilty and
sentenced to 7 years in prison (South East, June 19, 2006). See
SOFA, Programme d’Accueil et d’Accompagnement des femmes/filles
victimes de violence, Femmes accueillis à la SOFA – Accompagnement
Juridique: Informations surcinq (5) procès de viol.

[154]
SOFA, Cas de Violence Accueillis et Accompagnés Dans les Centres
Douvanjou de la SOFA de Juillet à Décembre 2006, January 2007,
p. 22.
At the time of writing this report, the currency exchange was
approximately 40 gourdes to US$1.00

[159]
IACHR, Access to Justice for Women Victims of Violence in the
Americas, OEA/Ser.L/V.II.Doc. 68, 20 January 2007,
Recommendations.

[160]
The State verified in its observations to this report that the
Protocol was signed on November 24, 2006. Observations of the State
of Haiti to the draft report “The Right of Women in Haiti to be Free
from Violence and Discrimination”, received by the IACHR on February
4, 2009, note JUR/09/PTM/jmm-0070.

[170]
The Commission notes that the decree entered into force on August
11, 2005, during the provisional government under former President
Boniface Alexandre. The preamble of the Decree states:
“[c]onsidering that the Legislature is, at the moment, inoperative,
the Executive is in a position to legislate by decree in the public
interest” [IACHR’s translation]. The State confirmed this
information in its observations to the draft report, “The Right of
Women in Haiti to be Free from Violence and Discrimination”,
received by the IACHR on February 4, 2009, note JUR/09/PTM/jmm-0070.

[178]
UNIFEM, The Impact of Crisis on Haitian Women: Report of
Fact-Finding Mission to Haiti, January 2006.

[179]
IACHR, Access to Justice for Women Victims of Violence in the
Americas, OEA/Ser.L/V.II.Doc. 68, 20 January 2007.

[180]
United Nations,
Report of the Special Rapporteur on violence against women, its
causes and consequences, Yakin Ertürk,
The Due Diligence Standard as a Tool for the Elimination of Violence
against Women, E/CN. 4/2006/61, para. 49.

[191]
See Amy Bracken, World Aids Day, “In Haiti, Gender Can Mean Life or
Death,” IPS, November, 30 2006; see also “HIV in Haiti is spread by
violence and little is done to prevent the attacks,” Sarah Fort, The
Center for Public Integrity, International Consortium for
Investigative Journalists. (“Medical care is necessary, [says
Yolette Jeanty, KAY FANM] because more cases are very violent. Many
times, rapists use sharp metal instruments attached to themselves to
assault women. Most victims of those kinds of attacks can’t bear
children and ‘usually have long term hemorrhaging.”)

[196]
Interview by IACHR delegation with AVSI representative, December
2006.

[197]
“For many adolescents, the first experience of sexual intercourse is
unwanted or actively coerced…much of this initial sexual coercion is
perpetrated by peers, including in the context of an intimate
relationship. […] Research indicates that the younger the age of
sexual initiation, the more likely that it was coerced in some way.
This is particularly true for girls, who face a greater risk of
forced first sex than boys”. The UN World Report on Violence against
Children, Paulo Sérgio Pinheiro, Independent Expert for the United
Nations Secretary-General’s Study on Violence against Children,
2006, p. 292, available at:
http://www.violencestudy.org/a553.

[199]
United Nations, Basic
Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law
and Serious Violations of International Humanitarian Law, G.A. Res.
60/147, U.N. Doc.
A/RES/60/147 (2005).

[200]
United Nations, Basic
Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law
and Serious Violations of International Humanitarian Law, G.A. Res.
60/147, U.N. Doc.
A/RES/60/147 (2005), paras. 19-23.

[201]
IACHR, Access to Justice for Women Victims of Violence in the
Americas, OEA/Ser.L/V.II.Doc. 68, 20 January 2007.; see also
IACHR, Violence and Discrimination against Women in the Armed
Conflict in Colombia, OEA/Ser/L/V/II. 124/Doc.6, October 18,
2006.